CRIMINAL LIABILITY FOR OMISSIONS

• In this lecture, we will consider:

• The general position under the criminal law of liability for omissions.

• The reasons for this rule.

• The requirements for the imposition of liability.

• The general principle in the criminal law is that liability for omissions is the exception, rather than the rule.

REASONS WHY

An unwillingness to infringe an individual’s personal freedom and force him to play the good Samaritan.

The difficulty in establishing that a person has by his omission caused the harm required for liability for the particular offence.

Requirements for the imposition of liability

Liability will only be imposed when 2 questions are answered in the affirmative:

1. Is the offence capable of being committed by omission?

2. Was the D under a legal duty to act?

• Are all offences capable of being committed by omission? Can, for example, an assault, see Fagan (1969).

The common law duties

• Contractual• Special relationship• Voluntarily assumed duty• Where D inadvertently creates a dangerous

situation whereby life or property are at risk• A duty to act, breach of which gives rise to

liability for a common law misdemeanour.

Contractual duty

• The classic example is the employer/employee relationship.

• See, for example, Pittwood (1902).

Doctors and other medical practitioners

Doctors and nurses owe a contractual duty to their patients.

Doctors are under no absolute duty to prolong the patient’s life regardless of the circumstances (Airedale NHS Trust v Bland (1993).

Special relationship

Close family relationships may give rise to a duty e.g. between:

parent and child (Senior (1899)) and (Gibbins and Proctor (1918))

Duty extends to those in loco parentis.

How long does such a duty last?

Does it last until the child reaches 18? Or leaves full-time education? In Shepherd (1862), no duty was held to

be owed by a parent to her “entirely emancipated” 18 year old daughter.

Might an adult child owe a duty to an elderly parent?

Husband and wife

• See Smith (1979), which left the position unclear, and Bonnyman (1942) in which a duty was imposed on a husband but this is not a good authority as he was also his wife’s doctor.

• Probably no duty if separated.

Is there a duty between cohabitees? No special relationship exists between

siblings (William Smith (1826)).

Voluntary assumption of a duty

Relevant caselaw: Nicholls (1874) Instan (1893) Stone & Dobinson (1977)

Where D inadvertently creates a dangerous situation whereby life or property are

at risk Leading case is Miller (1983). D owes this duty only when he realises that

he has created the dangerous situation. The duty is to take reasonable steps to

prevent or reduce harm/damage to persons or property at risk.

This is often called the principle of SUPERVENING FAULT.

A duty to act, breach of which gives rise to liability

for a common law misdemeanour.

• See, for example, Dytham (1979)

Statutory Duties

• Parliament has been more willing than the courts to impose liability for omissions, see for example, S.6 RTA 1988.

• Why might this be so?